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2023-TIOL-750-HC-MUM-GST
Mayel Steels Pvt Ltd Vs UoI
GST - Cancellation of CGST registration - Provisional Attachment of Bank Account/Property - Despite revenue being put to notice of filing of petition, which was served on 2nd December 2022, revenue proceeded to pass an order dated 2nd January 2023, cancelling petitioner's registration - Impugned order takes within its ambit some issues, which are not part of SCN - There is no reason to not accept petitioner's case that revenue acted in an arbitrary manner in exercising powers vested in him when he passed impugned order in breach of principles of natural justice - There can be no alternative but to set aside not only the SCN but the impugned order cancelling petitioner's registration - Revenue is free to issue fresh SCN - Whenever an action is intended to be taken by revenue in respect of registration of dealers, it is expected that SCN in that regard is not merely uploaded on Web-portal but also a copy of same be forwarded to dealers by e-mail and/or by hand delivery, so that the same are effectively replied: HC
- Writ petition disposed of: BOMBAY HIGH COURT
2023-TIOL-555-CESTAT-HYD
Sushee Infra Pvt Ltd Vs CCT
ST - Whether the amount received by appellant in name of commission while sub-contracting on back to back basis is liable to service tax under category "Business Auxiliary Service" and whether extended period of limitation is invokable and penalties are imposable upon appellant - For execution of work of awarded tenders, appellant was appointing sub-contractors to act on his behalf - Hence tender awarding departments/companies remain service recipients and sub-contractor is service provider but on behalf of appellant - Perusal of few such agreements make it clear that sub-contractor was not service recipient of appellant as such cannot be called as his client - Engagement of sub-contractor cannot be called as 'Business Auxiliary Service' being provided to subcontractor by appellant - Arrangement is rather outsourcing, some of appellant's work to some other person under an agreement - No doubt appellant was getting 2% of value involved in contract as their commission - However, appellant only was deducing said amount of commission for himself and was making payment to subcontractor in whose favour execution of work was outsourced by appellant - Hence, no service tax can be charged from appellant under head 'Business Auxiliary Services' - The period of demand is from October, 2004 to November, 2006 and SCN of 22.04.2010 i.e. which beyond the normal period prescribed for issuing SCN under Section 73 Finance Act - The proviso thereof enhances the normal period of 30 months to that of five years - However, only in the cases where service tax has not been levied or paid or has been short levied or short paid or erroneously refunded by reason either of fraud or collusion or wilful mis-statement or suppression of facts or contravention of any of the provisions of the Act or the rules made there-under that too with intent to evade payment of service tax by person charging service tax - There is nothing produced by Department on record to shown a positive act of appellant which may constitute an act of committing any fraud, misrepresentation or suppression on appellant's part - Proviso to Section 73 of Finance Act has wrongly been invoked by Department - Once there was no circumstance for appellant to be service provider of 'Business Auxiliary Services' to his sub-contractor, question of suppression is held to have wrongly been indicated - Extended period has wrongly been invoked by Department - The findings of Commissioner (A) in impugned order under challenge are therefore hereby set aside: CESTAT
- Appeal allowed: HYDERABAD CESTAT
2023-TIOL-554-CESTAT-MUM
Leena Powertech Engineers Pvt Ltd Vs CST
ST - Appellants are engaged in business of providing electrical engineering services viz., erection/ construction of power transmission, distribution, laying of cables between transformers, building electrification and construction & maintenance of transformers - During disputed period, M/s CIDCO had issued work order to appellant for providing activities of erection, testing and commissioning of 33/11 KV transformers with 11/0.4 KV substation with HT-LT cable network and construction of sub-station building - Assigned work executed by appellant were in context with installation and commissioning of sub-station for and on behalf of MSEB - The Central Government under Notfn 45/2010-ST has exempted payment of service tax on taxable services relating to transmission and distribution of electricity - Since, appellants have provided the activities for installation of power generation station, ultimately made for distribution of electricity, the benefit provided under said Notfn should appropriately be available to them - Further, it is also a practice being followed across the country that taxable services relating to transmission and distribution of electricity should not be subjected to levy of service tax and in that context, by exercising the powers conferred under Section 11C of CEA, 1944 read with Section 83 of Finance Act, 1994, Central Government has issued the Notification in granting exemption to such activities - No merits found in impugned order, insofar as it has confirmed service tax demand on appellant - Hence, appeal filed by appellants to such extent is allowed, with direction to grant consequential refund, upon fulfilment of conditions that the incidence of service tax has not been passed on to any other person and same has been borne by appellant themselves - With regard to denial of refund benefit for Rs.17,02,362/-, original authority should look into the matter afresh and should consider the relevant documents submitted by appellant for conclusion as to whether said amount has been paid in excess by appellant - Therefore, for the limited purpose of ascertaining arithmetical accuracy of refund claim amounting to Rs.17,02,362/-, matter is remanded to original authority for passing of de novo adjudication order - Opportunity of personal hearing should be granted to appellants before deciding the limited issue afresh: CESTAT
- Appeal partly allowed: MUMBAI CESTAT
2023-TIOL-553-CESTAT-CHD
Bajrang Lal Gupta Vs CCE
ST - Appellant is engaged in construction of residential houses on contract basis at various sites of Housing Board of Haryana - Department noticed that appellant had not discharged service tax on construction services rendered by it and issued a SCN to the appellant proposing service tax demand after extending the benefit of abatement of 67% under Notfn 1/2006-ST - Apex court in case of Larsen & Toubro Limited 2015-TIOL-187-SC-ST has settled the issue relating to works contract service which includes supply of material and labour for consideration and same is taxable only from 01.06.2007 - Further, even for the period after 01.06.2007, various decisions of Tribunal have consistently held that composite contract or works contract service even after 01.06.2007 cannot be taxed under Construction of Complex Service under Section 65 (105) (zzh) read with Section 65 (30a) of Finance Act, 1994 - Similarly, in case of Srishti Construction , Division Bench of Tribunal has also set-aside the demand of service tax under 'Works Contract Service' and has also held that extended period of limitation is not invokable - Impugned order is set-aside: CESTAT
- Appeals allowed: CHANDIGARH CESTAT
2023-TIOL-552-CESTAT-DEL
Mahindra And Mahindra Ltd Vs CCGST
CX - Appellant is engaged in manufacture of Motor Vehicle and its parts thereof and has been availing Cenvat credit on various eligible inputs, capital goods and input services in accordance with provisions of Cenvat Credit Rules, 2004 - A claim for refund was filed by appellant on 18.9.2017, within six months of vehicles being registered for sole use as Taxi in terms of Sl. No. 273 of Notfn 12/2012 - After verification of claim papers, a SCN was issued to appellant proposing rejection of part claim of Rs. 1,10,281 out of total claimed amount of Rs.4,95,711, on the ground that claim for refund of duty paid on vehicle registered as Taxi, was filed after expiry of 6 months from the date of payment of duty in terms of condition no. 26 (b) of Notfn 12/2012 and thus is time barred - Right to claim refund by manufacturer of motor vehicle under Notfn 12/2012, arises on material point or event, when the vehicle sold is registered with Motor Vehicle Department as an ambulance or taxi, and manufacturer receives such information from the buyer of vehicle along with proof - Thus, limitation for refund for a manufacturer under Notfn 12/2012 under Sl.No.273, is six months from the date of registration of vehicle as an ambulance or taxi - Appellant have claimed the refund within a period of six months of vehicles getting registered as taxi or ambulance - Impugned order is set aside to the extent, it has reduced refund for the amount of Rs.1,10,281/- - The Adjudicating Authority is further directed to disburse the refund amount within a period 45 days along with interest as per rules: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-551-CESTAT-KOL
Bengal Waterproof Ltd Vs CCE
CX - Appellant is engaged in manufacturing and clearing of rubber/footwear inter alia manufacturing of rubberized textile fabric and utilized the same for manufacturing of pressure sore prevention bed (PSP bed) which were cleared at nil rate of duty - The appellant is required to pay 8% of value of exempted goods as duty - Proceedings were initiated against the appellant - Appellant has paid 8% of value of rubberized textile fabric which in turn in use for manufacture of PSP, which means that appellant has not taken Cenvat Credit of 8% of value of rubberised textile fabric - Appellant has paid 8% of value of exempted goods on which no credit has been taken by them - Therefore, appellant is not required to pay 8% of value of PSP bed cleared by them - Impugned order is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT
2023-TIOL-550-CESTAT-DEL
Sushil Corrugating And Chemicals Pvt Ltd Vs CC
Cus - Appellant imported "modified Tapioca Starch", Industrial Grade classifying it under Chapter Heading 35051090 and paid appropriate amount of duty - Receiving intelligence that appellant had evaded customs duty and imported goods were "Native Tapioca Starch, Industrial Grade" classifiable under Tariff Heading 1108, a SCN was issued - The differential duty worked out has the effect of changing both the classification and valuation - However, there is no proposal whatsoever in SCN to change classification and impugned order and O-I-O also do not indicate any proposak to change classification of goods - Therefore, change of classification cannot be sustained - As far as valuation is concerned, entire proposal of Revenue is on two legs - The first is the appellant admitted in his statement that there was a difference between modified Tapioca Starch and Tapioca Starch and that he had imported Tapioca Starch in disputed consignments - The second is that TTSA prices during relevant period were much higher - Based on these two facts, assumption of Revenue is that the prices were mis-declared by appellant with an intent to evade duty and, therefore, declared prices can be rejected retrospectively and a demand under Section 28 (4) can be issued because there was a willful mis-statement by appellant - After examining the statements and evidence available on record, Tribunal do not find any substantial evidence to reject the declared value - The only thing which goes in favour of Revenue is that Managing Director of appellant had given statements which, he retracted later - If the statements and the retraction are both considered, nothing survives in this demand - If neither is considered also, nothing survives - Impugned order is set aside: CESTAT
- Appeal allowed: DELHI CESTAT
2023-TIOL-549-CESTAT-KOL
Gagan Deorah Vs CCGST, CE & C
Cus - Appellant is in appeal against impugned order, whereby Additional Commissioner has confiscated Yellow Peas and Motor Dal - The seizure was made from godown of appellant at Shillong city, which is not connected to International Border - Goods were purchased under valued documents, which are mix of Indian and imported origin and the purchase documents were not proven to be false or fake - No evidence other than foreign markings on bags was adduced to prove that goods were smuggled - Foreign markings or foreign origin of goods by itself does not render the goods as smuggled - Burden to prove the smuggled nature of goods is on Revenue - Such burden was not discharged by adducing any positive tangible evidence - Thus, foreign origin of goods even proved, smuggled nature thereof is not proven - Purchase bills submitted by appellant were not verified at source to find whether the goods under seizure were actually covered by documents or not - Mere fact that foreign origin of goods does not ipso facto lead to inevitable conclusion that same are of smuggled character - In liberalized economy, foreign goods have free entry and found in shops in abundance for almost each and every commodity - It needs corroborative evidence which is totally absent in case - Therefore, order of confiscation of goods is set aside: CESTAT
- Appeal allowed: KOLKATA CESTAT |
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